Introduction
Wilkister Adongo Omonge claims to have acquired ownership of land reference No. KISUMU MANYATTA “B”/2522 by adverse possession. She vide the Originating Summons dated 14th March, 2023, presented the following question for determination against Wilfrida Aluoch Kumba, the Respondent herein:
(1) whether by virtue of having been in open, peaceful and uninterrupted occupation of a portion of parcel of land being LR NO.KISUMU/MANYATTA “B”/2522 measuring approximately 0.04 hectares for a period in excess of 30 years, the Plaintiff is entitled to be declared the owner of the said parcel of land and to have the same registered in her name.
(2) whether the De fendant ought to be ordered to effect transfer of the said parcel of land in the name of the Plaintiff and failing which the Deputy Registrar of the court to sign such transfer documents in favour of the Plaintiff.
(3) Whether the Defendant ought to be ordered to pay the costs of the suit.
The Plaintiff’s case was that by an agreement dated 5th day of February, 1987, the Defendant agreed to sell and the Plaintiff agreed to buy from the Defendant a portion of land parcel number KISUMU/MANYATTA “A”/317 at the then agreed price of Kshs.6,000/-. That it was a term of the agreement that upon payment of the purchase price in full, the Defendant would put the Plaintiff in possession of the sold land parcel. That attempts by the Defendant to put the Plaintiff in possession were futile as the Plaintiff was removed by the true owners of the land. That sometimes thereafter the Plaintiff was made aware of another parcel of land which was believed to belong to the Defendant. That the Plaintiff entered there onto, took possession fenced it off and put up a structure.
That the Defendant on her part refused to give the Plaintiff the land for which she received money from the Plaintiff. That the land on which the Plaintiff settled is now designated as KISUMU/MANYATTA “B”/2522 of which the Plaintiff has been in active possession and use of a portion thereof for a period of now in excess of 30 years without consent of the Defendant.
That the Plaintiff has therefore had an open, peaceful and continuous occupation and use of a portion of the suit land for a period in excess of 30 years and thus acquired a portion of the suit land by adverse possession.
That it is now desirable that the suit parcel be transferred to the Plaintiff’s name.
The Defendant’s case as contained in her Replying Affidavit sworn on 13th October, 2023 was that she is the registered proprietor of land parcel known as KISUMU/MANYATTA “B”/2522 which is a sub-division of land parcel No. KISUMU/MANYATTA “B”/317. That the agreement presented by the Plaintiff is forged because her original national identity card does not reflect on the agreement, that a search carried out at the Registrar of Persons revealed that Identity card No.0274412/63 which appears on the sale agreement, belongs to one JOHN WANEKAYA ETABALE, who is a stranger to her.
That the applicant is not in occupation of the suit land save for temporary structures the Applicant has recently built in utter defiance.
That the application has no merit.
The Respondent urged the court to issue an order of eviction of the Applicant from the suit land.
The evidence
The suit was heard by way of viva voce evidence. The Applicant/Plaintiff testified as PW1. She adopted the contents of her Supporting Affidavit, the annextures thereto, the Further Affidavit and witness statement as her evidence in chief. She produced exhibits namely copy of green card, an agreement of sale dated 5th February, 1987, handwritten agreement dated 21st June, 1988 and photographs. The Plaintiff called one witness, Joseph Oluoch Omonge who testified as PW2.
On behalf of the Defendant, one witness testified. DW1 was Jane Adhiambo who testified on behalf of the Defendant on the strength of a Power of Attorney donated by the Defendant. She relied on the contents of the Replying Affidavit and her witness statement. Submissions
On behalf of the Applicant, written submissions dated 3rd December, 2025 were filed by Olel Onyango Ingutiah Advocates LLP.
While written submissions dated 8th December, 2025, were filed by D.O.E Anyul & Company Advocates on behalf of the Defendant.
Analysis and determination
The 1st question on the Originating Summons raises the issue of whether the Applicant is entitled to be declared owner of the suit land by application/operation of the doctrine of adverse possession.
It was submitted on behalf of the Applicant that adverse possession must be actual, peaceful, open, notorious, exclusive, and adverse to the actual owner’s interest for a period of 12 years as held in Mombasa Teachers Co-operative Saving and Credit Society Ltd -vs- Robert Muhambi Katana & Others [2018]eKLR.
That the Plaintiff had exclusive possession of a portion of the suit land measuring 0.04 ha for a period now in excess of 30 years.
That her pleadings and evidence were that she entered the land in the year 1987. That the photograph attached to the Supporting Affidavit shows the structures erected on the land, and that one side of the structures is old, showing a prolonged period of stay of the Plaintiff.
Relying on the case of Gatimu Kinguru -vs- Muya Gathangi [1976]KLR where the court observed that the period of adverse possession must not be broken for 12 years and that the land sought for adversity must be definite, identifiable and defined with a clear boundary, Counsel submitted that the Plaintiff’s claim is for only a portion of 0.04 Ha of the suit land and that from the photographs, the same is fenced all round and is thus identifiable and definite which is the portion the Plaintiff has occupied since the year 1987.
Counsel also relied on the case of Tabitha Waithero Kimani -vs- Joshua Nganga (2017)eKLR where the court identified a minimum of five basic conditions to be met to perfect the title of the adverse party namely; open and notorious use of the property, continuous use of the property, exclusive use of the property and actual use of the property.
Counsel submitted that the Plaintiff had proved these elements therefore discharging the burden of proof under Section 107 of the Evidence Act.
Counsel urged the court to find that the Plaintiff had made out a case for adverse possession over a portion of the suit property measuring 0.04 ha by adverse possession and order that the said portion of land be transferred in the name of the Plaintiff.
On behalf of the Defendant, it was submitted that the testimony of DW1 was never challenged. That DW1 confirmed that she did not know the Applicant and that neither she nor her older siblings had met the Applicant. That this confirms that the Applicant has never had any open and uninterrupted occupation of the suit property for a period of 12 years. Counsel relied on the case of Githu vs- Ndette (1984) and submitted that the Plaintiff does not fall within the provisions of the Limitations of Actions Act Cap 22 of the Laws of Kenya, under the following underpinnings;
(a) Time ceases to run either when the owner takes or asserts his rights or when his right is admitted by the adverse possessor. That is when the owner takes legal proceedings or make an effect entry onto the land. That the Applicant’s case is misconceived.
(b) A title by adverse possession can be acquired under the Limitation of Actions Act to a part of a parcel which the owner holds.
I have taken these submissions into account in the light of the pleadings and evidence placed before the court.
While the Plaintiff’s case is that her entry onto the suit land was on the basis of a land sale agreement which was never completed, the Defendant denies the existence of such land sale agreements. The two documents produced by the Plaintiff as the land sale agreements were disowned by the Defendant, who claimed that they were forged. However, no evidence was placed before the court that investigations were done on the said documents and that the same were found to be forged.
The Plaintiff called PW2 a witness who was present and witnessed one of the agreements.
Further if indeed there was no sale agreement, then it means that the entry was without justification, and the Defendant ought to have taken immediate steps to assert her title and remove the intruder.
There is no evidence of such steps.
The Defendant’s case is that the Plaintiff does not have possession of the suit land. However, the evidence of PW1 and PW2 was that the Plaintiff does have possession of a portion of the suit land. That the portion the Plaintiff occupies is fenced and developed with some structures thereon built by the Plaintiff.
The photograph produced by the Plaintiff shows the portion duly fenced with houses therein, some old and some new.
The Plaintiff’s case was that the old house was the one constructed in the year 1987 upon entry onto the land.
While DW1 stated in the Supporting Affidavit that the Plaintiff has some structures on the suit land which she (Plaintiff) constructed recently, DW1 stated in her evidence in chief and on cross-examination that the houses on the suit land belonged to one Opiyo, who constructed them.
The contradiction between the evidence of the principal (Defendant) and the agent (DW1) is not explained.
Under the doctrine of adverse possession, a person acquires legal title to land by reason of actual, open, hostile, and continuous occupation of it to the exclusion of the registered owner for a prescribed period. Under the provisions of the Limitation of Actions Act, the requisite period is 12 years. The doctrine is anchored on section 7, 13, 17 and 38 of the Limitation of Actions Act. Section 7 prohibits filing of actions for recovery of land after the expiry of 12 years from the date the right of action accrued.
The doctrine has been expounded in decided cases for instance, in the case of Mtana Lewa –vs- Kahindi Ngala Mwagandi [2015] e KLR the court of Appeal defined adverse possession as:
“Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya, twelve (12) years. The process springs into action essentially by default or in action of the owner. The essential prerequisites being that possession of the adverse possessor is neither by force or stealth nor under the license of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner.”
In Mombasa Teachers Co-operative Savings and Credit Society Limited vs Robert Muhambi Katana & 15 Others [2018] eKLR the courtheld that-
“Likewise, it is settled that a person seeking to acquire title by way of adverse possession must prove non-permissive or non-consensual, actual, open, notorious, exclusive, and adverse use/occupation of the land in question for an uninterrupted period of 12 years as espoused in the Latin maxim of nc vi, nec clam, nec precario. See Jandu vs Kirplal & another (1975) EA 225. In other words, a party relying on the doctrine bears the burden of demonstrating that the title holder has lost his right to the land either by being dispossessed of it or having discontinued his possession of it for the aforementioned statutory period. See this Court’s decision in Wambugu vs Njuguna [1983] KLR 173.”
In the present case, I find that the ingredients of adverse possession have been demonstrated.
The Defendant holds the portion of 0.04 Ha of the suit land in trust for the Plaintiff.
Further, because of the adverse possession, an overriding interest is created over the suit land in favour of the Plaintiff/applicant under section 28(h) of the Land Registration Act.
For the foregoing reasons, question 1 of the Originating Summons is determined in the affirmative.
The second question raises the issue of whether the Defendant should be ordered to transfer the portion to the Plaintiff.
Having found that adverse possession has been proved, it follows that the Plaintiff is entitled to transfer and registration of the portion measuring 0.04 Ha of the suit land in her name.
The last question relates to costs of the suit. Under the provisions of section 27 of the Civil Procedure Act, costs follow the event.
The result is that the court finds that the Plaintiff/applicant has proved her case on a balance of probabilities and enters judgment in her favour for: -
(a) A declaration that the Plaintiff/applicant has acquired title to a portion measuring 0.04 Ha of the suit land parcel No. KISUMU MANYATTA “B”/2522 as fenced out and occupied by the Plaintiff/applicant on the ground.
(b) An order that the Defendant subdivide the suit land parcel NO. KISUMU/MANYATTA “B”/2522 and transfers that portion fenced out and occupied by the Plaintiff/Applicant, measuring 0.04Ha to the Plaintiff/Applicant forthwith, failing which the Deputy Registrar of the Court shall sign all the relevant documents and instruments to effect the sub-division of the suit land and transfer of the identified portion measuring 0.04 Ha to the Plaintiff/Applicant.
(c) Costs to the Plaintiff/Applicant
Orders accordingly.
Judgment dated and signed at Kisumu and delivered virtually this 26th day of February, 2026.
E. ASATI,
JUDGE.
In the presence of:
Maureen- Court Assistant.
Gweth h/b for Onyango for the Plaintiff
Anyul for the Defendant.
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